Draft_Contract,_26-033_(3_25_26).pdf

Draft Contract for Cultural Center at Clemente Park Design Services (Lee County Black History Society

(LCBHS) Cultural Center)

RSQ 26-033

The City of Fort Myers Procurement Services

City of Fort Myers Procurement Services Website https://procurement.opengov.com/portal/cityftmyers

Table of Contents

RECITALS

ARTICLE 1 - NOTICES

1.1. Notices by Consultant to City

1.2. Notices by City to Consultant

1.3. Change of Address of Record

ARTICLE 2 - AMOUNT OF THE CONTRACT

ARTICLE 3 - CONTRACT DOCUMENTS

ARTICLE 4 – STATE, FEDERAL AND LOCAL LAWS

4.1. Cybersecurity

4.2. Governing Law / Venue

4.3. E-Verify / Immigration Laws

4.4. Florida Civil Rights Act (FCRA)

4.5. Florida Public Records Law

4.6. Human Trafficking

4.7. Scrutinized Companies

ARTICLE 5 - INDEMNIFICATION / HOLD HARMLESS

ARTICLE 6 - AMENDMENTS/MODIFICATIONS/CHANGES IN WORK

ARTICLE 7 - CONFLICT OF INTEREST

ARTICLE 8 - CONTINGENT FEE PROHIBITION

ARTICLE 9 – CONTRACT AMINISTRATION

ARTICLE 10 – NON-DISCRIMINATION

ARTICLE 11 – EMPLOYEES

11.1. Qualified Personnel

11.2. Removal of Personnel

ARTICLE 12 – ERRORS AND OMISSIONS

12.1. Responsibility to Correct

ARTICLE 13 – HEADINGS AND TITLES

ARTICLE 14 – IMPROPER USE OF FACILITIES

ARTICLE 15 – INDEPENDENT CONSULTANT

ARTICLE 16 – LICENSES

ARTICLE 17 – LIQUIDATED DAMAGES

ARTICLE 18 – OBLIGATIONS OF THE CONSULTANT

18.1. Timely Accomplishment of Services

18.2. Standards of Professional Service

18.3. Not to Divulge Certain Information

18.4. Consultant to Repair Property Damage Caused by the Consultant

18.5. Responsibility for Estimates

18.6. Patents, Royalties and Copyrights

18.7. Permits

18.8. Purchase Orders

18.9. Record Retention

18.10. Truth-In-Negotiations Certificate

18.11. Completion of Tasks

18.12. All Drawings

18.13. All Reports

18.14. City’s Construction Project Management Platform Software

ARTICLE 19 – OWNERSHIP OF DOCUMENTS

ARTICLE 20 – PAYMENT

20.1. Basic Services

20.2. Additional Services

20.3. Discounts

20.4. Invoicing

20.5. Invoice Statements

20.6. Methods of Payment

20.7. Payment Dispute Resolution

ARTICLE 21 - PERFORMANCE, TIME AND SCHEDULE

21.1. Notice to Proceed / Purchase Order

21.2. Time of Performance

21.3. Work Schedule

21.4. Timely Accomplishment of Services

21.5. Failure to Perform in a Timely Manner

ARTICLE 22 - PROJECT MANAGER

22.1. Consultant

22.2. City

ARTICLE 23 - RESERVATION OF RIGHTS

ARTICLE 24 – TERMINATION

24.1. For Convenience

24.2. For Cause

24.3. Non-Appropriation

ARTICLE 25 – THIRD-PARTY BENEFICIARIES

ARTICLE 26 – WAIVER OF BREACH

ARTICLE 27 – WORK

ARTICLE 28 – ANTITRUST

ARTICLE 29 - ASSIGNMENT, TRANSFER AND SUBCONTRACTS

ARTICLE 30 – FAILURE TO ENFORCE

ARTICLE 31 – FORCE MAJEURE

ARTICLE 32 – SEVERABILITY

ARTICLE 33 – TAXES

ARTICLE 34 - CONTRACT EXECUTION

ARTICLE 35 - ACCEPTANCE

Exhibit A - SCOPE OF SERVICES

Exhibit B - FEE SCHEDULE

Exhibit C - COMPENSATION AND METHOD OF PAYMENT

Exhibit D - PERSONNEL HOURLY RATE SCHEDULE

Exhibit E - TIME & SCHEDULE OF PERFORMANCE

Exhibit F - SUBCONSULTANTS & SUBCONTRACTORS

Exhibit G - TRUTH IN NEGOTIATION CERTIFICATE

Exhibit H – PROJECT GUIDELINES AND CRITERIA

Exhibit I – CERTIFICATE OF INSURANCE

PROFESSIONAL SERVICES AGREEMENT

between

City of Fort Myers and

>TBD

This Agreement between the City of Fort Myers (hereafter called "City"), executing this Agreement, and >TBD (hereafter called "Consultant").

This agreement is effective on the date the notice to proceed is issued and ends when the project is completed, except if extended by change order.

The Contract may be cancelled or terminated as provided in the Contract documents. Any amendments to this Contract must be in writing.

RECITALS

WHEREAS, the City desires to obtain the Services of said Consultant to provide and perform Services as further described hereinafter concerning the Project to be referred to and identified as: Cultural Center at Clemente Park Design Services (Lee County Black History Society (LCBHS) Cultural Center), RSQ 26-033

WHEREAS, the Consultant hereby certifies that the Consultant has been granted and possesses valid, current licenses to do business in Lee County, Florida and in the City of Fort Myers issued by the respective State Boards and Government Agencies responsible for regulating and licensing the Services to be provided and performed by the Consultant pursuant to this Agreement; and

WHEREAS, the Consultant has reviewed the Services required pursuant to this Agreement and is qualified, willing and able to provide, perform or acquire all such services in accordance with the provisions, conditions and terms hereinafter set forth; and

NOW, THEREFORE in consideration of the mutual covenants, terms and provisions contained herein, the parties hereto agree that with the mutual acceptance of this Agreement, as indicated hereinafter by the execution of this Agreement by both parties, that a Contract shall exist between both parties consisting of:

ARTICLE 1 - NOTICES

1.1. Notices by Consultant to City

All notices from the Consultant to the City, shall be deemed duly served if electronically transmitted to the City at the following address:

Email:

procurementservices@fortmyers.gov, cc@fortmyers.gov, and legalservice@fortmyers.gov.

Copy to:

City Attorney's Office, City of Fort Myers, 2200 Second Street, Fort Myers, FL 33901

1.2. Notices by City to Consultant

All notices required and/or made pursuant to this Agreement to be given by the City to the Consultant shall be made in writing and shall be provided electronically to the email address below:

mailto:procurementservices@fortmyers.gov mailto:cc@fortmyers.gov mailto:legalservice@fortmyers.gov

Name: >TBD

Contact: >TBD

Address: >TBD

Phone: >TBD

Email: >TBD

1.3. Change of Address of Record

Either party may change its address of record by written notice to the other party given in accordance with the requirements of this Article.

ARTICLE 2 - AMOUNT OF THE CONTRACT

Choose one:

The estimated contract award for the term of this contract is:

> $ >TBD.

> based on the unit pricing provided in the above referenced Solicitation.

ARTICLE 3 - CONTRACT DOCUMENTS

The following documents are hereby incorporated into this contract. The order of precedence is as follows: 1) Amendments issued after contract execution, incorporated by reference 2) Permits (if applicable), incorporated by reference 3) This Agreement 4) Addenda / Questions and Answers (if applicable), incorporated by reference 5) Solicitation Document (Exhibit A) 6) Consultant's submittal/proposal (Exhibit B) 7) All Purchase Orders issued under the Solicitation, incorporated by reference 8) Certificates of Insurance, incorporated by reference. Any inconsistencies in this solicitation or contract shall be resolved by giving precedence to the order above.

ARTICLE 4 – STATE, FEDERAL AND LOCAL LAWS

Consultant agrees to comply, at its own expense, with all federal, state and local laws, codes, statutes, ordinances, administrative rules, regulations and requirements applicable to the Project, including but not limited to those dealing with taxation, workers’ compensation, equal employment and safety.

If Consultant observes that the Contract Documents are at variance therewith, it shall promptly notify the City in writing.

4.1. Cybersecurity

Consultant must be aware of Florida Statute 119.0725 regarding cybersecurity and protection of confidential information.

4.2. Governing Law / Venue

Any contract entered into as a result of this solicitation shall be deemed to be under and shall be governed by, and construed according to, the laws of the State of Florida. Any litigation arising out of this contract shall be commenced in the State and Federal Courts of Lee County, Florida. The Consultant shall comply with all applicable federal, state, and local laws in the performance of work under the contract.

4.3. E-Verify / Immigration Laws

During the term of this Contract, the Consultant shall fully comply with Florida Statute Sec. 448.095, which includes but is not limited to, registering with and utilizing the U.S. Department of Homeland Security’s E-Verify system to verify the work authorization status of all new employees and requiring an affidavit from any Subconsultants stating that the Subconsultants uses and shall continue to use the E-Verify System to verify the work authorization status of all newly hired employees stating that the Subconsultants uses and shall continue to use the E-Verify System to verify the work authorization status of all newly hired employees and does not employ, contract with or subcontract with an unauthorized alien.

https://www.flsenate.gov/Laws/Statutes/2022/0119.0725

The City will not intentionally award City Contracts to any Consultant who knowingly employs unauthorized alien workers, constituting a violation of the Employment Provisions contained in 8 U.S.C. Section 1324 a(e) Section 274a(e) of the Immigration and Nationality Act (“INA”) The City may not consider employment by any Consultant of unauthorized aliens a violation of Section 274a(e) of INA. Such violation by the recipient of the employment provisions contained in Section 274a(e) of the INA shall be grounds for unilateral cancellation of the contract by the City.

Consultant attests that they are fully compliant with all applicable Immigration Laws (specifically to the 1986 Immigration Act and Subsequent Amendments).

4.4. Florida Civil Rights Act (FCRA)

The Consultant shall comply with provisions of Florida Statutes Chapter 760 the Florida Civil Rights Act (FCRA), that protects individuals from discrimination in employment, housing, and public accommodations based on characteristics such as race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status.

4.5. Florida Public Records Law

The parties acknowledge and agree that all provisions of the Florida Public Records Law, Chapter 119, are and shall be binding and enforced at all times with regard to all actions and activities under this Agreement. Consultant recognizes that in contracting with the City, it has the burden of complying with the Florida Public Records Laws, Chapter 119, for any documents in its possession. Nothing in this Agreement shall prohibit or restrict or create any liability on the City for complying in good faith with the Florida Public Records Law, Chapter 119 of the Florida Statutes:

To the extent that Consultant may meet the definition of a “Contractor” as defined by Section 119.0701, Florida Statutes, it will:

4.5.1. Keep and maintain public records required by the public agency to perform the service.

4.5.2. Upon request from the public agency’s custodian of public records, provide the public agency with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law.

4.5.3. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the contract term and following completion of the contract if the Consultant does not transfer the records to the public agency.

4.5.4. Upon completion of the contract, transfer, at no cost, to the public agency all public records in possession of the Consultant or keep and maintain public records required by the public agency to perform the service. If the Consultant transfers all public records to the public agency upon completion of the contract, the Consultant shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Consultant keeps and maintains public records upon completion of the contract, the Consultant shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the public agency, upon request from the public agency’s custodian of public records, in a format that is compatible with the information technology systems of the public agency.

If the Consultant has questions regarding the application of Chapter 119, Florida Statutes, to the Consultant's duty to provide public records relating to this contract, contact the City's Custodian of Public Records at c/o City Clerk, (239) 321-7042, jgravitt@fortmyers.gov 2200 Second Street., Fort Myers, FL 33901.

4.6. Human Trafficking

Effective July 1, 2024, pursuant to §787.06(13)(a), Florida Statutes, when a contract is executed, renewed, or extended between a nongovernmental entity and a governmental entity, the nongovernmental entity must provide the governmental entity with an affidavit signed by an officer or a representative of the nongovernmental entity under penalty of perjury attesting that the nongovernmental entity does not use coercion for labor or services. Prior to contract execution, extension or renewal, the nongovernmental entity shall complete and submit the form under the attachment section.

4.7. Scrutinized Companies

https://www.flsenate.gov/Laws/Statutes/2021/Chapter760/PART_I https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 https://www.flsenate.gov/Laws/Statutes/2020/119.01 mailto:jgravitt@cityftmyers.com

Pursuant to Florida Statute Section 287.135, Consultant certifies at the time it submits a bid or proposal for a contract or before the Consultant enters into or renews a contract with the City for goods or services of any amount, the Consultant must certify that it is not participating in a boycott of Israel. Any contract for goods or services, regardless of amount, entered into or renewed on or after July 1, 2025, may be terminated at the option of the City if the Consultant is found to have been placed on the Scrutinized Companies or Other Entities that Boycott Israel List or is engaged in a boycott of Israel.

>If Contract will exceed $1M use both clauses.

Pursuant to Florida Statute Section 287.135, Consultant certifies at the time it submits a bid or proposal for a contract or before the Consultant enters into or renews a contract with the City for goods or services of $1 million dollars or more, that the Consultant is not on the Scrutinized Companies with Activities in Sudan List or the Scrutinized Companies with Activities in Iran Terrorism Sectors List and that it does not have business operations in Cuba or Syria. Any contract for goods or services of $1 million dollars or more entered into or renewed on or after July 1, 2018, may be terminated at the option of the City if the Consultant is found to have submitted a false certification as provided under Florida Statute 287.135(5), been placed on the Scrutinized Companies with Activities in Sudan List, been engaged in business operations in Cuba or Syria, or has been placed on a list pursuant to Florida Statute 215.473, relating to scrutinized active business operations in Iran.

ARTICLE 5 - INDEMNIFICATION / HOLD HARMLESS

The Consultant shall indemnify and hold harmless the City, and its officers and employees, from liabilities, damages, losses, and costs, including, but not limited to, reasonable attorneys’ fees, to the extent caused by the negligence, recklessness, or intentionally wrongful conduct of the Consultant and other persons employed or utilized by the Consultant in the performance of the contract. This indemnification provision shall in no way be limited by any financial responsibility or insurance requirements and shall survive the termination of this Agreement. It is the specific intent of the parties hereto that the foregoing indemnification complies with Section 725.08, Florida Statutes, as amended. Consultant expressly agrees that it will not claim, and waives any claim, that this indemnification violates Section 725.08, Florida Statutes, as amended. Nothing contained in the foregoing indemnification shall be construed as a waiver of any immunity or limitation of liability the City may have under the doctrine of sovereign immunity or Section 768.28, Florida Statutes.

ARTICLE 6 - AMENDMENTS/MODIFICATIONS/CHANGES IN WORK

Amendments to this Contract may be made upon the mutual acceptance by both parties and shall only be valid when issued in writing as a properly executed [Amendment(s), Supplemental Agreement(s), or Change Order(s)] (as defined in the "Definitions" section). In the event of any conflicts between the requirements, provisions, and/or terms of this Contract and any written Amendment(s), Supplemental Agreement(s), or Change Order(s), then the latest executed Amendment(s), Supplemental Agreement(s), and/or Change Order(s) shall take precedence.

The City, without invalidating the contract, may order changes in the Work within the general scope of the contract consisting of additions, deletions, or other revisions, the Agreement price and time being adjusted accordingly. All such changes in the Work shall be authorized by a written amendment to the contract and shall be executed under the applicable conditions of the contract upon approval of Council.

If the Consultant plans to make a claim for an increase in the contract price or an extension in the contract schedule term, it shall first give the City written notice within ten (10) calendar days after the occurrence of the event giving rise to such a claim. This written notice shall be given by the Consultant to the City, and a written approval secured from the Department and the Procurement Manager, and Council before proceeding to execute the Work, except in an emergency endangering life or property, in which case the Consultant shall immediately proceed. No claim for extra work will be considered valid by the City unless first submitted in writing. Section 218.755, Florida Statutes, requires the City to approve or deny Contractor-submitted change order quotes within 35 days. If no response is given, the quote is deemed automatically approved and payment is required upon completion. This deadline cannot be waived by contract.

Each such "Amendment", "Supplemental Agreement" or "Change Order" shall set forth a comprehensive, detailed description of: (1) the Scope of the Additional Services requested; (2) the basis of compensation; and (3) the period of time and/or schedule for performing and completing said Additional Services.

ARTICLE 7 - CONFLICT OF INTEREST

The award of this contract is subject to the provisions of Chapter 112, Florida Statutes. All Consultant(s) must disclose within their responses to the City the name of any officer, director, or agent who is also an employee of the City of Fort

Myers. Furthermore, all Consultant(s) must disclose the name of any City employee who owns, directly or indirectly, an interest of more than five percent (5%) in the Consultant business or any of its branches. The purpose of this disclosure is to give the City the information needed to identify potential conflicts of interest for evaluation by the team members and other key personnel involved in the award of this contract. The term “conflict of interest” refers to situations in which financial or other personal consideration may adversely affect, or have the appearance of adversely affecting, an employee’s professional judgment in exercising any City duty or responsibility in administration, management, instruction, research, or other professional activities. Please submit to the City all information on any potential conflict of interest related to provision of the goods or services requested in this Solicitation.

The Consultant represents that to the best of its knowledge and belief, it presently has no interest and shall acquire no interest, either direct or indirect, which would conflict in any manner with the performance of services required hereunder. The Consultant further agrees that no person having any such interest shall be employed or engaged by the Consultant for said performance.

If Consultant, for itself and on behalf of its Subconsultant/Subcontractor, is about to engage in representing another client, which it in good faith believes could result in a conflict of interest with the work being performed by Consultant or such Subconsultant/Subcontractor under this Agreement, then it will promptly bring such potential conflict of interest to the City's attention, in writing. The City will then advise the Consultant, in writing, within ten (10) calendar days as to the period-of-time required by the City to determine if such a conflict of interest exists. If the City determines that there is a conflict of interest, Consultant or such Subconsultant/Subcontractor shall decline the representation upon written notice by the City.

If the City determines that there is no such conflict of interest, then the City shall give its written consent to such representation. If Consultant or Subconsultant/Subcontractor accepts such a representation without obtaining the City's prior written consent, and if the City subsequently determines that there is a conflict of interest between such representation and the work being performed by Consultant or such Subconsultant/Subcontractor under this Agreement, then the Consultant or Subconsultant/Subcontractor agrees to promptly terminate such representation. Consultant shall require each of such Subconsultant/Subcontractor to comply with the provision of this Section.

Should the Consultant fail to advise or notify the City, as provided hereinabove, of representation which could, or does, result in a conflict of interest, or should the Consultant fail to discontinue such representation, the City may consider such failure as justifiable cause to terminate this Agreement.

ARTICLE 8 - CONTINGENT FEE PROHIBITION

The Consultant warrants that he has not employed or retained any company or person, other than a bona fide employee working solely for the Consultant to solicit or secure this agreement, and that he has not paid or agreed to pay any person, company, corporation, individual, or firm, other than a bona fide employee working solely for the Consultant, any fee, commission, percentage, gift, or other consideration contingent upon, or resulting from, the award or making of this Agreement.

ARTICLE 9 – CONTRACT AMINISTRATION

This agreement shall be administered on behalf of the City of Fort Myers.

ARTICLE 10 – NON-DISCRIMINATION

The Consultant for itself, its successors in interest, and assigns as part of the consideration thereof, does hereby covenant and agree that in the furnishing of services to City hereunder, no person on the grounds of race, religion, national origin, physical disability, gender, sexual orientation or gender identity shall be excluded from participation in, denied the benefits of, or otherwise be subjected to discrimination. Consultant shall make every effort to comply with any MBE goals, which have been established for this project.

Provide a harassment-free workplace, with any allegation of harassment given priority attention and action by management;

Incorporate the foregoing requirements in all subcontracts related to its contract with the City of Fort Myers.

ARTICLE 11 – EMPLOYEES

11.1. Qualified Personnel

The Consultant agrees that any work to be performed relate to a work which, under Florida Statutes, requires a license, certificate of authorization or other form of legal entitlement to engage in such work, to employ and/or retain only qualified personnel to be in responsible charge of all work to be provided pursuant to this Agreement.

The Consultant shall employ people to work at the City’s facilities who are neat, clean, well-groomed and courteous.

11.2. Removal of Personnel

The Consultant agrees, within thirty (30) calendar days of receipt of a written request from the City, to promptly remove and replace the Consultant's Project Manager, or any other personnel employed or retained by the Consultant, or personnel of the Subconsultant/Subcontractor engaged by the Consultant to provide and/or perform services and/or work pursuant to the requirements of this Agreement, who the City shall request, in writing, be removed, which request may be made by the City with or without cause. However, notwithstanding the above, nothing herein shall interfere with the Consultant's right to terminate its employees or employees’ right to terminate their employment with the Consultant.

ARTICLE 12 – ERRORS AND OMISSIONS

12.1. Responsibility to Correct

In accordance with the generally accepted standards of the engineering profession, the Consultant agrees to be responsible for the professional quality, technical adequacy and accuracy, timely completion, and the coordination of all data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents and instruments, and other services, work and materials performed, provided, and/or furnished by the Consultant or by any Subconsultant/Subcontractor retained or engaged by the Consultant pursuant to this Agreement. The Consultant shall, without additional compensation, correct, revise, or have corrected or revised any errors, omissions and other deficiencies in such data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, other documents, and instruments, and other services, work and materials resulting from the negligent act, errors or omissions or intentional misconduct of the Consultant or any Subconsultant/Subcontractor engaged by the Consultant.

12.2. Approval Shall Not Relieve Consultant of Responsibility The City’s review, approval, or acceptance of any data, studies, surveys, designs, specifications, calculations, estimates, plans, drawings, construction documents, photographs, reports, memoranda, or any other documents, instruments, or incidental professional services, work, and materials provided by the Consultant or any Subconsultant/Subcontractor engaged by the Consultant shall not relieve the Consultant of its responsibilities. Specifically, the Consultant remains fully responsible for the adequacy, completeness, and accuracy of all services, work, and materials it provides. This responsibility also extends to all services, work, and materials provided by any Subconsultant/Subcontractor engaged by the Consultant under this Agreement.

Neither the City's review, approval or acceptance of, nor payment for, any of the Consultant services, work and materials shall be construed to operate as a waiver of any of the City's rights under this Agreement, or any cause of action it may have arising out of the performance of this Agreement.

ARTICLE 13 – HEADINGS AND TITLES

The headings and titles used for the Articles, Sections, Exhibits, Attachments, Phases, or Tasks in this Agreement are provided solely for convenience. They shall not be interpreted as altering, expanding, limiting, or affecting the meaning, intent, interpretation, or scope of any part of this Agreement.

ARTICLE 14 – IMPROPER USE OF FACILITIES

The Consultant will not use, nor suffer or permit any person to use in any manner whatsoever, City facilities for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county or municipal ordinance, rule order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. In the event of such violation by the Consultant or if the City or its authorized representative shall deem any conduct on the part of the Consultant to be objectionable or improper, the City shall have the right to suspend the Contract of the Consultant. Should the Consultant fail to correct any such violation, conduct, or practice to the satisfaction of the City within twenty-four (24) hours after receiving notice of such violation, conduct, or practice, such suspension may continue until the violation is cured. The Consultant further agrees not to commence operation during the suspension period until the violation has been corrected to the satisfaction of the City.

ARTICLE 15 – INDEPENDENT CONSULTANT

Nothing herein contained shall create or be construed as creating a partnership between the City and the Consultant or to constitute the Consultant as an agent of the City. Consultant is and shall remain an independent Consultant, which term is generally understood and may be dictated by law. Consultant will be solely responsible for payment of all federal, state, and local income tax, and self-employment taxes, arising from this Contract. The City will not make deductions from payments due, for such taxes, or for social security, unemployment insurance, worker’s compensation, or other employment or payroll taxes. Consultant will also be responsible for the performance of their subcontractors.

ARTICLE 16 – LICENSES

The Consultant agrees to obtain and maintain throughout the period this Agreement is in effect, all such licenses as are required to do business in the State of Florida and in the City of Fort Myers, Florida, including, but not limited to, licenses required by the respective State Boards and other governmental agencies responsible for regulating and licensing the professional services provided and performed by the Consultant pursuant to this Agreement.

ARTICLE 17 – LIQUIDATED DAMAGES

The "Commencement Date” shall be established in the Notice to Proceed to be issued by the City. Consultant shall commence the work upon the issuance of the Notice to Proceed. No Work shall be performed at the Project site prior to the Commencement Date. Any Work performed by Consultant prior to the commencement Date shall be at the sole risk of Consultant.

The Work shall be substantially completed within the time agreed upon by the City and Consultant. The date of substantial completion of the Work (or designated portions thereof) is the date certified by the City when construction is sufficiently complete, in accordance with the Contract Documents, so the City can occupy or utilize the Work (or designated portions thereof) for the use for which it is intended. The Work shall reach final completion and be ready for final acceptance by the City within the time specified.

The Work under this contract will be substantially completed within TBD calendar days after the notice to proceed is issued and final completion will occur within TBD calendar days after notice to proceed is issued.

The City and Consultant recognize that since time is of the essence for any work under this Agreement, the City will suffer financial loss if the Work is not substantially completed with the time specified. Should Consultant fail to substantially complete the Work within the specified time period, the City shall be entitled to assess as liquidated damages but not as a penalty, an amount specified below for each calendar day thereafter until substantial completion is achieved:

Total Contract Amount Per Day

$299,999 and under........................................................$904

$300,000 but less than $2,000,000..............................$1,685

$2,000,000 but less than $5,000,000...........................$2,667

$5,000,000 but less than $10,000,000.........................$3,813

$10,000,000 but less than $20,000,000.......................$5,021

$20,000,000 but less than $40,000,000.......................$7,442

$40,000,000 and over...............$10,224 plus 0.00005 of any amount over $40 million (Round to nearest whole dollar)

The Project shall be deemed to be substantially completed on the date the TBD issues a Certificate of Substantial Completion pursuant to the terms hereof. Consultant hereby expressly waives and relinquishes any right which it may have to seek the above noted liquidated damages as a penalty, which the parties agree represents a fair and reasonable estimate of the City’s actual damages at the time of contracting if Consultant fails to substantially complete the Work in a timely manner.

When any period of time is referenced by days herein, it shall be computed to exclude the first day and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a legal Holiday, such day shall be omitted from the computation, and the last day shall become the next succeeding day which is not a Saturday, Sunday or legal holiday.

ARTICLE 18 – OBLIGATIONS OF THE CONSULTANT

The duties and obligations imposed upon the Consultant by this Agreement, and the rights and remedies available hereunder, shall be in addition to, and not a limitation of, any otherwise imposed or available by law or statute.

The obligations of the Consultant with respect to all the Basic Services and Additional Services authorized pursuant to this Agreement shall include, but not be limited to, the following:

18.1. Timely Accomplishment of Services

The timely performance and completion of the required services, work and materials is vitally important to the interests of the City. Time is of the essence for all of the duties and obligations contained in this Agreement and any Amendment thereto. The City may suffer damages in the event that the Consultant does not accomplish and complete the required services in a timely manner. The Consultant agrees to employ, engage, retain and/or assign an adequate number of personnel throughout the period of this Agreement so that all Basic Services and Additional Services will be provided, performed and completed in a timely and diligent manner throughout. Failure to complete the work as contained in "Time and Schedule of Performance" form, shall be a consideration in determination of Consultant responsibility in any future request for contract services.

18.2. Standards of Professional Service

The work and/or services to be provided and/or performed by the Consultant and by any Subconsultant/Subcontractor engaged by the Consultant as set forth in the Scope of Professional Services, shall be done in accordance with the generally accepted standards of professional practice and in accordance with the applicable laws, rules, regulations, ordinances, codes, policies, standards or other guidelines issued by those governmental agencies which have jurisdiction over all or a portion of this project and which are in effect at the time the City approves this Agreement, or which may subsequently be changed or revised. Any subsequent change or revision to such laws, rules, regulations, ordinances, codes, standards or other guidelines which requires the Consultant to provide and/or perform work and/or services which are significantly different from that set forth in the Scope of Professional Services, shall serve as a basis for the City to consider the development and issuance of a Change Order to provide for a change to, or Additional Services to the services set forth in the Agreement, and where applicable, additional compensation.

18.3. Not to Divulge Certain Information

Consultant agrees, during the term of this Agreement, not to divulge, furnish or make available to any third person, firm, or organization, without City's prior written consent, or unless incident to the proper performance of Consultant obligations hereunder, or in the courts of judicial or legislative proceedings where such information has been properly subpoenaed, any non-public information concerning the services to be rendered by Consultant or any Subconsultant/Subcontractor pursuant to this Agreement. Consultant shall require all of its employees, Subconsultant/Subcontractor to comply with the provisions of this paragraph.

18.4. Consultant to Repair Property Damage Caused by the Consultant

Consultant agrees to promptly repair and/or replace, or cause to have repaired and/or replaced, at its sole cost and expense and in a manner acceptable to and approved by the City, any property damage arising out of, or caused by, the willful misconduct or negligent acts of the Consultant, or of its Subconsultant/Subcontractor. Consultant obligation under this sub-article does not apply to property damage caused in whole or in part by any other Consultant engaged directly by the City.

The City reserves the right, should the Consultant fail to make such repairs and/or replacement within a reasonable period of time, to cause such repairs and/or replacement to be made by others and for all costs and expenses associated with having such repairs and/or replacement done to be paid for by the Consultant, or by the Consultant reimbursing the City for all such costs and expenses.

18.5. Responsibility for Estimates

In the event the services required, pursuant to this Agreement, include the Consultant preparing and submitting to the City any fees, the Consultant, by exercise of their experience and judgement, shall develop its best cost estimates and shall be held accountable, responsible, and liable for the accuracy, completeness, and correctness of any and all such cost estimates within the level of accuracy defined by the Association for the Advancement of Cost Engineering (AACE) International for the current project stage. For purposes of the Liability Provisions of this Article only, the Consultant estimate shall be considered valid and effective for a period of six (6) months from the date of the City's acceptance of the estimate.

18.6. Patents, Royalties and Copyrights

The Consultant shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work, and if to the actual knowledge of the City, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by the City in the Contract Documents.

18.7. Permits

The Consultant will be responsible for preparing all required applications and other supportive information necessary to assist the City in submitting for and obtaining all reviews, approvals and permits, with respect to the Consultant design, drawings and specifications required by any governmental body having authority over the project. Any fees required for such reviews, approvals or permits will be covered by a check issued by the City and made payable to the respective governmental body upon the Consultant furnishing the City satisfactory documentation of such fees. The Consultant will be similarly responsible for preparing all required applications and other supportive information necessary to assist the City in submitting for and obtaining any renewals and/or extensions of reviews, approvals or permits that may be required while this Agreement is in effect. The City shall, at the Consultant request, assist in obtaining required signatures and provide the Consultant with all information known to be available to the City so as to assist the Consultant in the preparation and the City's subsequent submittal of any original, renewal or extension of required reviews, approvals or permits.

18.8. Purchase Orders

All Purchase Orders issued pursuant to the Contract will be deemed to incorporate all terms and conditions of this solicitation regardless of whether these Documents are expressly referenced therein.

Before commencing work, the Consultant must receive a City PO/work order/or P-Card authorization. Shipments or work performed will be made as specified on the purchase order, conforming to the pricing form, specifications, and terms & conditions. No work may proceed unless the Consultant is in receipt of a Work Order and the associated PO.

18.9. Record Retention

Awarded Consultant will keep and maintain adequate records and documents applicable to the project at the Consultant's expense for a minimum of five (5) years from date of final payment, unless the Consultant is notified in writing by the City of the need to extend the retention period. Books and accounts shall be open to investigation upon request.

The City shall be entitled to audit the books and records of a Consultant or any Subconsultants to the extent that such books and records relate to the performance of the contract or any subcontract. The Consultant and its Subconsultants shall retain and maintain financial records and other records relating to the contract for a period of five (5) years from the date of final payment under the contract and by the Subconsultants for a period of five (5) years from the date of final payment under the subcontract or such longer period as may be required by law, whichever is later, pursuant to Florida Public Records Law Chapter 119. If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the 5-year period, the records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the regular 5-year period, whichever is later.

18.10. Truth-In-Negotiations Certificate

The City may request that the Consultant execute a Truth-in-Negotiations Certificate ("Certificate"), in a form attached in the submission questionnaire. The Certificate shall state that wage rates and other factual unit costs supporting the compensation are accurate, complete and current at the time this Agreement is executed. The original contract price and any additions thereto shall be adjusted to exclude any significant sums by which the City determines the contract price was increased due to inaccurate, incomplete or non-current wage rates of other factual unit costs.

18.11. Completion of Tasks

Unless otherwise set forth in the Agreement, the Consultant shall be responsible for providing and performing whatever services, work, equipment, material, personnel, supplies, facilities, transportation and administrative support that are necessary and required to complete all of the tasks set forth in the section entitled "Scope of Services" and Supplemental

Agreements and Change Orders authorized. The compensation to be paid the Consultant, as set forth in "Compensation and Method of Payment" and Supplemental Agreements and Change Orders authorized thereto, shall be understood and agreed to adequately and completely compensate the Consultant for providing or performing whatever services, work, equipment, material, personnel, supplies, facilities, transportation and administrative support that are necessary and required to complete the tasks set forth in the 'Project Details' and Supplemental Agreements and Change Orders authorized thereto as stated above.

18.12. All Drawings

All drawings for the City shall be submitted in an electronic format that is completely compatible to the City's software.

18.13. All Reports

All reports and written documents for the City will be submitted in an electronic format that is completely compatible to the City's software. All photos, exhibits, graphs, tables, etc. contained within any report or document will be provided separately in a file format compatible to the City's software.

18.14. City’s Construction Project Management Platform Software

For project archival purposes, the City will utilize 3rd-party Construction Project Management Platform software. The Platform is used to manage design document packages, construction documents (change orders, ASls, RFls, RFPs, field orders, field reports/observations, consultant reports/observations, etc.), project financials, invoice management, quality/safety reports, close-out documents, and other project-related documents for records retention purposes.

The Contractor shall use the Platform and shall be provided access and training to accomplish document posting, distribution, and archiving for the purposes of review, comments, approval, periodic billings, and other project processes involving multiple parties (e.g. AIE team, City stakeholders and departments, 3rd party Consultant, etc.).

ARTICLE 19 – OWNERSHIP OF DOCUMENTS

All documents such as drawings, tracings, notes, computer files, photographs, plans, specifications, maps, evaluations, reports and other records and data relating to this project, other than working papers, specifically prepared or developed by the Consultant under this Agreement, shall be property of the City upon creation, with Consultant retaining a license to use.

Upon the completion or termination of this Agreement, or upon the City issuing a written Change Order that removes all or part of the services or tasks to be performed by the Consultant, the Consultant shall, within seven (7) calendar days of the City’s written request, deliver all related documents to the City as specified. If the City issues a written Notice of Termination for all or part of the required services or work, or a written Change Order removing all or part of the services or work, the Consultant must provide the requested documents as outlined above. It is understood by both parties that any compensation earned or owed to the Consultant for services rendered prior to the termination or change will be paid to the Consultant within thirty (30) calendar days following the issuance of the Notice of Termination or Change Order.

The Consultant, at its expense, may make and retain copies of all documents delivered to the City for reference and internal use. The Consultant shall not, and agrees not to, use any of these documents, and data and information contained therein, on any other project, or for any other client, without the prior expressed written permission of the City.

Any use by the City of said documents, and data and information contained therein, obtained by the City under the provisions of this Agreement, for any purpose not within the scope of this Agreement, shall be at the risk of the City, and without liability to the Consultant.

ARTICLE 20 – PAYMENT

20.1. Basic Services

The City shall pay the Consultant for all requested and authorized Basic Services rendered hereunder by the Consultant and completed in accordance with the requirements, provisions, and/or terms of this Agreement or its Amendment and accepted by the City in accordance with the provisions for compensation and payment of said Basic Services set forth and prescribed in "Compensation and Method of Payment", which is attached hereto and made a part of this Agreement, or on the basis of such changes to the established compensation as may be mutually agreed to by both parties to this Agreement as evidenced by a written Supplemental Agreement or Change Order executed by both parties.

20.2. Additional Services

The City shall pay the Consultant for all such Additional Services as have been requested and authorized by the City and agreed to, in writing, by both parties to this Agreement and which have been rendered as Additional Services by the Consultant and completed in accordance with the requirements, provisions, and/or terms of this Agreement or its Amendments, and accepted by the City in accordance with the provisions for compensation and payment of said Additional Services, as set forth and prescribed in "Compensation and Method of Payment", which is attached hereto and made a part of this Agreement, or on the basis of such changes to the established compensation as may be mutually agreed to by both parties to this Agreement as evidenced by a written Supplemental Agreement or Change Order executed by both parties.

20.3. Discounts

Consultant may offer a discount for prompt payment; however, such discounts shall not be considered in determining the lowest net price for evaluation purposes. Discounts will be computed from the date of satisfactory delivery at place of acceptance or from receipt of correct invoice at the office specified, whichever is later.

Consultant is requested to offer price discount for prompt invoice payment. It is the policy of the City to make payments of invoices in time to earn any offered discounts. Discount time will be computed from the date of satisfactory delivery at place of acceptance or from receipt of correct invoice at the Accounts Payable Office, whichever is later.

20.4. Invoicing

All invoices, in order to be classified as a proper invoice, shall be delivered via e-mail to APInvoices@fortmyers.gov and addressed to Accounts Payable, Finance Department, City of Fort Myers, 2200 Second Street, Fort Myers, Florida, 33901.

For purposes of billing submission and payment procedures, a "proper invoice" by a Consultant or other invoicing party shall conform to the following process:

20.4.1. A description (including quantity) of the goods and/or services provided to the City (or a party on behalf of the City) reasonably sufficient to identify it (or them);

20.4.2. The amount due, applicable discount, and the terms thereof;

20.4.3. The full name of the Consultant or other party who is supplying the goods and/or services including a mailing address in case of a dispute and a mailing address for payment purposes (if they are different) and a telephone number;

20.4.4. The Purchase Order or Contract number as supplied by the City;

20.4.5. An identification by Division, Office or Department of the party(ies) to whom the goods were delivered or services provided; and

20.4.6. In order to be considered as a proper invoice, it must be based on 1) a proper delivery, 2) installation, or 3) provision of the goods and/or services acceptance by the City; and the Consultant or other party who is supplying the goods and/or services has otherwise complied with all of the Contract's terms and conditions and is not in default of any of them.

20.5. Invoice Statements

The Consultant shall be entitled to submit not more than one invoice statement to the City each calendar month covering services rendered during the preceding calendar month. The Consultant invoice statement shall be itemized to correspond to the basis of compensation as set forth in the Agreement, or Supplemental Agreement and/or Change Order, there under.